Exhibit
10.1


 


 


 


SECOND AMENDMENT TO 

AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT


 


THIS
SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this “Amendment”)
is made as of the 7th day of August, 2008, between Crystal
River Capital, Inc., a Maryland corporation (“Borrower”),
and Brookfield US Corporation, f/k/a Brascan (US)
Corporation (“Lender”).


 


W  I  T  N  E  S  S
E  T  H:


 


WHEREAS,
Borrower and Lender are parties to that certain Amended and Restated Revolving
Credit Agreement dated as of November 8, 2007, as amended pursuant to that
certain First Amendment to Amended and Restated Revolving Credit Agreement
dated as of March 7, 2008 (as further amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”; unless
otherwise defined herein, all capitalized terms used in this Amendment shall
have the meanings ascribed to such terms in the Credit Agreement); and


 


WHEREAS,
Borrower and Lender desire to amend the Credit Agreement as hereinafter set
forth;


 


NOW,
THEREFORE, in consideration of the premises set forth above, the terms and
conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:


 


1.                                       Amendments to
the Credit Agreement.


 


                                                                                                (a)           Section 5.4
of the Credit Agreement is hereby amended and restated in its entirety as
follows, effective as of June 30, 2008, as follows:


 


                                                                                                “5.4         Financial Covenants.  For each fiscal quarter of Borrower,
commencing with the fiscal quarter ended June 30, 2008 and thereafter,
maintain Net Worth in an amount equal to not less than $40,000,000.”


 


2.                                       Conditions of
Effectiveness.  This
Amendment shall become effective as of the date hereof when, and only when,
Lender shall have received:


 


                                                                                                (a)           a counterpart of this Amendment duly
executed by Borrower; and


 


                                                                                                (b)           such other information, documents,
instruments or approvals as Lender or Lender’s counsel may require.


 


3.                                       Representations
and Warranties of Borrower.  Borrower represents and warrants as follows:


 


                                                                                                (a)           Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Maryland;


 


 


 


 


 


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                                                                                                (b)           The execution, delivery and
performance by Borrower of this Amendment are within Borrower’s corporate
powers, have been duly authorized by all necessary corporate action and do not (i) contravene
Borrower’s charter or by-laws, or (ii) violate the law or any material
contractual restriction binding on or affecting Borrower;


 


                                                                                                (c)           No authorization, approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and performance by
Borrower of this Amendment;


 


                                                                                                (d)           Each representation or warranty of
Borrower set forth in the Credit Agreement is hereby restated and reaffirmed as
true and correct on and as of the date of this Amendment, and after giving
effect to this Amendment, as if such representation or warranty were made on
and as of the date of, and after giving effect to, this Amendment (except to
the extent that any such representation or warranty expressly relates to a
prior specific date or period and except to the extent of changes in facts or
circumstances permitted by the terms of the Credit Agreement);


 


                                                                                                (e)           This Amendment constitutes the legal,
valid and binding obligation of Borrower, enforceable against Borrower in
accordance with its terms; and


 


                                                                                                (f)            No Default or Event of Default is
existing.


 


4.                                       Reference to and
Effect on the Credit Agreement and the Other Documents.


 


                                                                                                (a)           Upon the effectiveness of this
Amendment, on and after the date hereof each reference in the Credit Agreement
to “this Agreement,” “hereunder,” “hereof” or words of like import referring to
the Credit Agreement, and each reference in the Other Documents to “the Credit
Agreement,” “thereunder,” “thereof” or words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit Agreement as
amended hereby.


 


                                                                                                (b)           Except as specifically amended above,
the Credit Agreement and all Other Documents, are and shall continue to be in
full force and effect and are hereby in all respects ratified and
confirmed.  Borrower has no knowledge of
any challenge to Lender’s claims arising under the Credit Agreement or the
Other Documents or the effectiveness of the Credit Agreement or the Other
Documents.


 


                                                                                                (c)           The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of Lender under any of the
Credit Agreement or the Other Documents, nor constitute a waiver of any
provision of any of the Credit Agreement or the Other Documents.  This Amendment shall not constitute a
modification of the Credit Agreement or a course of dealing with Lender at
variance with the Credit Agreement such as to require further notice by Lender
to require strict compliance with the terms of the Credit Agreement and the
Other Documents in the future, except as expressly set forth herein.


 


5.                                       Costs and
Expenses.  Borrower
agrees to pay on demand all reasonable costs and expenses in connection with
the preparation, execution, delivery, administration, modification and
amendment of this Amendment and the other instruments and documents to be
delivered 




 


 


 


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hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for Lender with respect
thereto and with respect to advising Lender as to its rights and
responsibilities hereunder and thereunder.


 


6.                                       Governing Law.  This Amendment shall be governed by and
construed in accordance with the laws of the State of New York without regard
to conflict of laws principles of such state.


 


7.                                       Counterparts.  This Amendment may be executed by one or more
of the parties hereto on any number of separate counterparts, each of which
shall be deemed an original and all of which, taken together, shall be deemed
to constitute one and the same instrument. 
Delivery of an executed counterpart of this Amendment by facsimile or
electronic mail transmission shall be as effective as delivery of a manually
executed counterpart hereof.


 


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IN
WITNESS WHEREOF, the parties hereto have caused their respective duly
authorized officers or representatives to execute and deliver this Amendment as
of the day and year first written above.


 


 


	
   

  	
  CRYSTAL
  RIVER CAPITAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William M. Powell

  
	
   

  	
  Name:

  	
  William
  M. Powell

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BROOKFIELD
  US CORPORATION, 

  F/K/A BRASCAN (US) CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jay Sheth

  
	
   

  	
  Name:

  	
  Jay
  Sheth

  
	
   

  	
  Title:

  	
  Vice
  President